The death of Bala Saheb Thakre had been seen as an end of an era
of militant politics in Maharashtra. Not withstanding the
popularity of Mr Thakre amongst the local population, rest of
India always feared the militant nature of his party cadres.
During the funeral one of the popular discussion points on TV
was how Mr Udhav Thakre had followed a more sober line of
thinking as compared to Raj Thakre and how Shivasena was a
politically more acceptable party under his leadership.

Things however took a U turn next day with Shivasena cadres in
Palghar, a small place in Thane district ransacked a small
hospital and police arrested two 21 year old girls, one for
allegedly posting a view on the FaceBook that there should be
no "Bundh" because of Mr Thakre's death and the other "liked"
the post. The girls were presented before a Magistrate who sent
them on 14 days Judicial custody but offered bail which was used
to free the arrested persons. The attackers who ransacked the
hospital of the Uncle of one of these girls were not arrested.

This whole episode which has followed the case of Aseem Trivedi
being arrested for displaying a cartoon on a website critical of
corruption, Ravi Srinivasan arrested for a tweet on Karti
Chidambaram has created a bizarre situation in India where
online activity has been punished with lot more severity than an
offline activity of comparable dimensions. More aptly, things
which are not an offence offline have been treated as offence
online.

How can a Cartoon be considered as "Sedition"?, How can an
opposition to a bundh be dubbed "Hurting the religious
sentiments"? and even if so how can the acts be considered
serious enough to register and FIR and commit people to arrest
and Judicial Custody is difficult to understand in logical
thinking.

In trying to find a logical explanation to the act of the Police
in these incidents, people have tried to find fault with
ITA 2008 and in particular Section 66A. There are naturally
demands for repealment of the section and presently a PIL is
also pending in Madurai Court in this respect.

However, in my opinion, while Section 66A of ITA 2008 has been
apparently used as an excuse for action by the Police, it is
absurd to think that these arrests are justified under this
section. The section was meant for addressing malicious misuse
of e-mails and SMS/MMS messages to prevent Cyber Stalking, Cyber
Bullying, Phishing etc and was not meant to address issues of
defamation or Sedition or other IPC crimes alleged to have been
committed online. Such offences have to be tried under IPC using
electronic evidence and should not be tried under Section 66A.

The only logical explanation to all these incidents is that
some members of the Police at least in Maharashtra have turned themselves into Goonda elements and are acting on their own whims and fancies.
There is no legal base for their action and their action is
completely illegal. Since their actions cannot be upheld as
legal, the Policemen cannot be given any protection to which
they are otherwise entitled when they attend the call of duty.

I donot also accept the view that the Police are ignorant of ITA
2008 and have made a mistake and hence this can be corrected by
better awareness of ITA 2008 at lower levels of Police.
Police appear to be fully aware of what they were doing, they had joined
hands with the Shivasena workers and acting illegally against
the general population. Such policemen need to be immediately
dismissed from service, arrested and tried for subverting the
law and order system which is an "Anti national activity".

The ball is now in the court of the Chief Minister of
Maharashtra who has to either support the Shivasena view and go
soft or take the view that the policemen have committed an
offence and put them on trial. Since this is unlikely to take
place, the only hope is for the Mumbai High Court to take
suo moto action in recognizing the illegal activity of the
police and initiate action.

From the perspective of ITA 2008 and the need to repeal Section
66A, I feel that unless there is a change in the attitude of the
Police, it will be difficult to prevent such atrocities even if
Section 66A is repealed. IPC has given the police enough
powers which can be applied even if an offence is committed with
an electronic document and hence we cannot prevent such
incidents in future also.

What perhaps would help is an addition to ITA 2008 of an
"Immunity Section" which clearly specifies that "Offensive
sections of ITA 2008 shall be applicable only for adverse impact
caused on an person or property in electronic form and not for
causing damage to physical property or person. Damages to
physical property or person should be tried only under IPC". In
the process, we may dilute the act and to avoid such dilution we
may have to make several other consequential changes to sections
such as Section 66F, 67 etc.

However in order to arrest the current trend of killing the
freedom of expression on the Internet, there is a need to make
some significant amendments and we should start a debate on this
requirement. I sincerely feel that the issue of "Freedom on the
Net" is of such great relevance in India that it should be an
issue in the coming Parliamentary elections. I would like all
political parties to express their stand on the issue and what
actions they propose to take in case they come to power.

Along with corruption let "Freedom on the Net" also be a
determinant of which party rules India in the next few years.

Naavi

20th Nov 2012

P.S:

What the
offensive Message stated:

""With
all respect, every day, thousands of people die, but still the
world moves on. Just due to one politician died a natural death,
everyone just goes bonkers. They should know, we are resilient
by force, not by choice. When was the last time, did anyone
showed some respect or even a two-minute silence for Shaheed
Bhagat Singh, Azad, Sukhdev or any of the people because of whom
we are free-living Indians? Respect is earned, given, and
definitely not forced. Today, Mumbai shuts down due to fear, not
due to respect.""

It is anybody's guess how this will fit in as an offensive
post either under Section 66A or any other section of IPC.
If some policeman thinks so, he deserves to be dismissed
forthwith from the onerous responsibility of maintaining
"Law and Order" since he cannot understand what is "Law" and
maintain what is "order".

People Reportedly Involved

- Shaheen Dhadha, 21 is the person who posted on
her FB wall- Ruhi Shrinivasan is her friend who "liked" the
post- Shrikant Pingle, Police Inspector, Palghar
- Bhushan Sanke, the local Shiv Sena activist who
filed the complaint- Harshal Pradhan, a Shiv Sena spokesman, said
that he was unaware of the incident (tried to protect the
vandals by being secretive?)- R G Borse, the Judicial Magistrate of Palghar
court

Sections used

Section 295A of IPC, Section 66A. Subsequently
section 295A was changed to 505(2) of IPC. (Not known if Section
66A was dropped)